Firefighter Bill of Rights and Weingarten Rights
The intent of this article is to define Weingarten Rights as they relate to the Firefighter Bill of Rights and apply them to a firefighter who is requesting union or association representation.
Union representation for firefighter union or association members date back to a Unites States Supreme Court decision in 1975. The courts ruled that employees have a right to union representation during investigatory interviews. These rights have become universally known as Weingarten Rights. Weingarten Rights apply directly to the Firefighter Bill of Rights for a firefighter who is requesting union or association representation.
Whether or not the state recognizes a formal Firefighter Bill of Rights, there are three rules that have been defined by the Supreme Court in the Weingarten Rights that apply to a firefighter who is requesting representation during an investigatory interview:
Rule 1 – The firefighter must make it clear that he or she is requesting union or association representation. The firefighter cannot be punished for making this request.
Rule 2- Once the firefighter makes the request, Fire Management has three options:
· Fire Management may grant the request and delay questioning until union or association arrives and the member has time to consult with his or her representative.
· Fire Management may deny the request and stop the interview.
· Fire Management gives the employee a clear choice between continuing the interview without representation, or ending the interview altogether.
Rule 3: If Fire Management denies the request for union or association representation and continues with the interviews, it is conducting unfair labor practices. It is also violating the Firefighter Bill of Rights. The firefighter has a right to refuse to answer the questions and Fire Administration is not allowed to discipline the firefighter for refusing to answer the questions.
The take away for both fire department unions or associations and fire management is to allow union representation for any member who is being investigated and may be disciplined as a result of the findings in the interview. To be safe, fire management would be wise to allow union or association representation if there is any chance the firefighter will face discipline. This course of action not only protects the process as outlined in the Firefighter Bill of Rights, but it also follows the Weingarten Rights.
To be clear, according to the Weingarten decision, the firefighter is required to clearly request union or association representation. To eliminate any doubt, we encourage fire management to ask if the firefighter who is subject to discipline wants to have union or association representation.